AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 7 February 2001

R v Taousanis

[2001] NSWSC 74

Homicide
CRIMINAL LAW ADMISSIBILITY IDENTIFICATION PRIOR TO TRIAL WHETHER WITNESS' RECOLLECTION "FRESH" EVIDENCE ACT S66

Citation: R v Taousanis [2001] NSWSC 74
Court: Supreme Court of New South Wales (Common Law Division)
Date: 7 February 2001
Judge(s): Hidden J

Background

The accused faced criminal proceedings in which the Crown alleged he arranged for an associate, Fred Massih, to purchase a boat under a false name for the purpose of disposing of a murder victim's body. A witness, Mr Matri, had sold the boat to a man who identified himself as Mustafa Mahamad in late April 1991.

On 1 August 1991, approximately three months after the sale, Mr Matri selected a photograph from a police array and signed the back of it. Other evidence established that the photograph was of Massih. By the time of trial, Mr Matri had no independent recollection of the purchaser's appearance or of which photograph he had chosen.

The Crown sought to lead evidence of that earlier photo identification. The accused objected on the grounds that the evidence was inadmissible hearsay under the Evidence Act 1995 and, separately, that its admission would be unfairly prejudicial under s 137.

  • Whether evidence of a pre-trial act of identification constitutes hearsay within the meaning of the Evidence Act 1995
  • Whether, if hearsay, the evidence satisfied the requirements of s 66 of the Act, specifically the requirement that the witness's memory of the relevant event was "fresh" at the time of the identification
  • Whether, even if otherwise admissible, the evidence should be excluded under s 137 as unfairly prejudicial to the accused

Decision

Hidden J accepted the Crown's evidence was hearsay and turned first to the Court of Criminal Appeal's recent decision in R v Barbaro. Drawing on the reasoning of Grove J in that case, his Honour concluded that evidence of a pre-trial act of identification is hearsay, and that this applies whether the evidence is given by the identifying witness or by someone who observed the identification taking place. Accordingly, admissibility depended on whether the requirements of s 66 of the Evidence Act were satisfied.

Section 66 permits the admission of prior hearsay statements where the relevant event was fresh in the witness's memory at the time the representation was made. The event in question was the boat sale in late April 1991. The photo identification did not occur until 1 August 1991, more than three months later. His Honour held that the witness's memory of the sale could not, on any view, be described as "fresh" within the meaning of s 66 at that point. The evidence was therefore inadmissible.

His Honour added a further, independent basis for rejection under s 137, which requires a court to exclude evidence whose probative value is outweighed by the danger of unfair prejudice to the defendant. Of the photographs originally shown to Mr Matri, only three remained. The rest had been lost in the nearly ten years since the identification. Because the size and composition of the original array were unknown, the accused's representatives could not meaningfully test the fairness of the identification procedure. That forensic disadvantage, his Honour found, would in any event have justified exclusion under s 137.

Orders Made

No formal orders were reproduced in the judgment text. The ruling was that the evidence be rejected.

Key Takeaways

  • Evidence of a pre-trial photo identification constitutes hearsay under the Evidence Act 1995, regardless of whether it is given by the identifying witness or an observer present at the time.
  • Under s 66 of the Evidence Act, such identification evidence is admissible only if the underlying event was fresh in the witness's memory when the identification was made; a gap of over three months was held to preclude a finding of freshness on the facts of this case.
  • The Court of Criminal Appeal's decision in R v Barbaro was applied as settling the hearsay characterisation of identification evidence, though Hidden J acknowledged some residual uncertainty in one paragraph of that judgment.
  • Where substantial portions of a photographic array have been lost over time, the inability of an accused's representatives to examine the fairness of the array may independently justify exclusion under s 137 of the Evidence Act.
  • Probative value and fairness to the accused both bear on the s 137 balancing exercise; the degradation of evidence over many years can itself create the kind of prejudice that warrants exclusion.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 66, 137

Cases
- R v Barbaro (2000) 112 ACrim R 551 (NSW Court of Criminal Appeal)
- Graham v The Queen (1998) 195 CLR 606 (High Court of Australia)